Cook v. State

• Decision Date: 01 November 1918
• Docket Number: (No. 9751.)
• Citation: Cook v. State, 22 Ga.App. 770, 97 S.E. 264 (Ga. App. 1918)
• Parties: COOK. v. STATE.
• Court: Georgia Court of Appeals

22 Ga.App. 770

97 S.E. 264

COOK.

v.STATE.

(No. 9751.)

Court of Appeals of Georgia, Division No. 2.

Nov. 1, 1918.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; B. H. Hill, Judge.

J. W. Cook was convicted of blackmail. His motion for a new trial was overruled, and he excepts and brings error. Affirmed.

The grand jury of Fulton county returned an indictment against J. W. Cook and Mrs. H. H. Hirsch, charging them with the offense of blackmail, and containing three counts, as follows:

First, that the defendants "did verbally accuse Asa G. Candler, Sr., with the offense of adultery with Mrs. H. H. Hirsch, a married woman, with intent to extort money from the said Asa G. Candler, Sr."

Second, that the defendants "did verbally threaten to accuse Asa G. Candler, Sr., with the offense of adultery with Mrs. H. H. Hirsch, with intent to extort money from said Asa G. Candler, Sr."

Third, that the defendants "did verbally accuse and threaten to accuse Asa G. Candler, Sr., with preparing and attempting to have sexual intercourse, and actually having had sexual intercourse, with Mrs. H. II. Hirsch, a married woman, and did then and there threaten, unless a sum of money was paid to the said J. W. Cook and the said Mrs. H. H. Hirsch, to expose said sexual intercourse and said preparations and attempt to have sexual intercourse to the husband of the said Mrs. H. H. Hirsch, and likewise to bring said alleged acts to the attention of thegrand jury of the county of Pulton, the same being done with intent to extort money from the said Asa G. Candler, Sr."

A demurrer to the indictment, a motion for change of venue, and a plea in abatement were overruled. The trial resulted in a verdict of guilty, the defendant's motion for a new trial was overruled, and the case came to this court on exceptions to the rulings stated.

John R. Cooper, of Macon, and James & Bedgood, and R. B. Russell, all of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., E. A. Stephens, and R. R. Arnold, all of Atlanta, for the State.

BLOODWORTH, J. (after stating the facts as above). [1] 1. The material parts of the indictment will be found in the foregoing statement of facts. Whether or not the demurrer should have been sustained and the indictment quashed will be determined under the laws of this state. Section 954 of the Penal Code (1910) says:

"Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may be easily understood by the jury."

The first headnote in Williams v. State, 2 Ga. App. 629, 58 S. E. 1071, is as follows:

"Where every essential ingredient of the offense charged is set forth with sufficient clearness to enable the defendant to prepare his defense, and the jury clearly to understand the nature of the offense, the accusation is not demurrable."

The indictment in this case measures fully up to the above requirements. It is "so plain that a common man may without doubt or difficulty, from the language used, know what is the charge made against the accused." Locke v. State, 3 Ga. 540. "The indictment was sufficiently full and definite in its statement to inform the defendant of the offense with which he was charged, and exact enough to protect him from a second jeopardy." Youmans v. State, 7 Ga. App. 101, 66 S. E. 383 (4). The indictment is for a statutory offense, and it is a well-settled principle of pleading in this state that—

"An indictment which charges the offense defined by a legislative act in the language of the act, where the description of the acts alleged as constituting the offense is full enough to put the defendant on notice of the offense with which he is charged, is sufficiently specific." Glover v. State, 126 Ga. 594, 55 S. E. 592(1); Stoner v. State, 5 Ga. App. 716, 63 S. E. 602(1).

Indeed the question as to whether this indictment is good does not seem to be an open one. In the case of Chunn v. State, 125 Ga. 789, 54 S. E. 751, in which the distinguished leading counsel for the plaintiff in error in this case was sole counsel for the plaintiff in error, the first headnote is as follows:

"The offense of blackmail, as set forth in the Penal Code, § 116, was sufficiently laid in an indictment which alleged that the defendant, with intent to extort money from a named person, did accuse him of a particular crime, and compel him to do certain acts against his will."

The indictment in that case, in so far as it alleged that the defendant had charged the prosecutor with a crime, asserted that the defendant did "unlawfully verbally accuse M. Kunz with the crime of fornication and adultery with Mrs. Rose Chunn." It went further, however, and charged the defendant With doing certain other things "against his will, " and alleged that the charge of the crime and the compelling of Kunz to do the things alleged against his will were with the intent to extort money from him. The demurrer in that case was somewhat similar to the one in the instant case; it was overruled, and that ruling was sustained by the Supreme Court. Fornication and adultery, and adultery, are each clearly understood and recognized as crimes under our law. In the opinion in the Chunn Case Mr. Justice Atkinson said, on page 790 of 125 Ga., on page 752 of 54 S. E.:

"It will be observed that the gravamen of the offense is the 'intent to extort money or other thing of value.' In the indictment it is clearly alleged that the defendant did the several things which are therein specified, and that the same were done 'with the intent to extort money from M. Kunz.' It therefore appears that the defendant was charged in the very language of the statute, which, under familiar rules of law, is all that is required."

Under the above-quoted section of the Code, the crime of blackmail is complete if any person "with intent to extort money or other thing of value, " either "verbally or by printing or writing, accuse another of a crime or offense, " or "expose or publish any of his other personal or business acts, infirmities, or fallings', " or "compel any person to do any act, or to refrain from doing any lawful act, against his will." In the Chunn Case, the indictment alleged, not only that the defendant charged the prosecutor with a crime— adultery and fornication—but alleged that the defendant compelled the prosecutor against his will to do certain other things, with intent to extort money. The court held, in effect, that the indictment was good on both branches of the charge.

2. Complaint is made that the judge erred in overruling the motion to change the venue. This point is saved to the plaintiff in error by the exceptions pendente lite. Before such a ruling would avail the movant, he must show that by it injury resulted to his cause. While the exceptions pendente lite recite that, "upon said application or petition being read, and before defendant's counsel could have an opportunity to be heard, and before an opportunity was afforded defendant to introduce any testimony to sustain any allegations in his motion to change the venue, the judge presiding then and there overruled said application to change the venue of said case, " yet it nowhere affirmatively appears that he was prepared to support his motion "by affidavitsor oral testimony, " and tills would be necessary before the judge would have any evidence upon which to pass. Penal Code (1910), § 964. To deprive a defendant of the privilege of introducing evidence does not hurt his cause if he makes no offer to introduce evidence, or if the evidence offered would not change the result. This court cannot say that the movant was hurt by the refusal of the court to hear evidence, until it is shown what the evidence is. Even when evidence has been introduced, it is the fixed policy of this state not to interfere with the discretion of the trial judge unless this discretion has been "plainly and manifestly abused." Coleman v. State, 141 Ga. 737, 82 S. E. 227 (1); Rawlins v. State, 124 Ga. 31, 52 S. E. 1 (2).

3. The court did not err in overruling the special plea which attacked the validity of the indictment on the ground that V. H. Kreigshaber, one of the grand jurors who participated in finding the bill, was a stockholder in a corporation of which the prosecutor was also a stockholder, and probably a director. "Alleged disqualification of grand jurors propter affectum is not a valid ground for plea In abatement to an indictment." Hall v. State, 7 Ga. App. 115. 66 S. E. 390 (1). See, also, Parris v. State, 125 Ga. 777, 54 S. E. 751 (3, 4).

[41 4. Ground 4 of the amendment to the motion for a new trial will not be considered, because the trial judge refused to approve and certify that ground.

5. Even if ground 5 had been good as originally drawn, it was so qualified by the judge as to render it without merit. In reference to this ground of the motion, the judge says:

"The court certifies that the court did decline to put the jurors on the list on their voir dire on motion of the defendant; but, before the jury were sworn in the case, the court did announce to counsel, 'If either side has any challenge to offer to any of these jurors, I will hear the challenge, ' and the defendant's counsel did not offer any challenge."

There is no statutory provision in Georgia which requires that jurors in misdemeanor rases be put on their voir dire. In Schnell v. State, 92 Ga. 459, 17 S. E. 966, it was said:

"In trials for misdemeanors there is no right (o examine a juror upon his voir dire without first challenging him and assigning a cause of challenge. This must be done before the juror is sworn, unless the cause of challenge be unknown till afterwards. Where it does not appear to the reviewing court that any particular juror was challenged, or that any cause of challenge was assigned, or at what stage of the...